Cristian Conversion

Posted
Tuesday, January 31, 2012 12:00 am

Written by Susan Cooper Eastman

At Kernan Middle School on Monday, March 14, a sixth-grade teacher marked Cristian Fernandez with an unexcused absence. The 12-year-old was a straight-A student and known as a quiet kid who kept to himself. But no one knew, and few could have imagined, the adult responsibilities he shouldered at home.

That Monday, his mother, Biannela Marie Susana, left three younger siblings in his care — 2-year-old David, 4-year-old Lyanna and 5-year-old Luis. Cristian Fernandez would later tell a psychologist that his mother frequently left him in charge of the other children, although he was careful not to say anything that would make her sound like a bad mom. Sometime that morning, in the bedroom of their Southside apartment, Cristian got angry at David, and he punished him for it violently. Fernandez told the psychologist he rammed his brother’s head against a bookshelf in the bedroom. When the toddler fell to the ground, Fernandez picked him up and rammed him into the bookshelf again. After the outburst, Fernandez seems to have recovered himself and switched back to the role of caretaker — a pattern familiar to victims of abuse. He told police he carried his little brother — unconscious and bleeding — to the lower bunk bed in their bedroom, and then called his mother.

Susana brought David to St. Luke’s Hospital at 5:30 that evening. Doctors there had him airlifted immediately to Shands Jacksonville, but they didn’t expect him to survive. His skull was fractured and his brain had been bleeding for hours. After two days on life support, doctors removed David from the machines.

Police investigators appeared to blame Susana for the child’s death. They noted that she’d left the toddler in Fernandez’s care despite knowing he’d been violent before with the toddler. (Cristian had broken David’s leg last January, and the toddler was still wearing a blue cast from his hip to his ankle when he died.) Police also noted that Susana waited two hours to seek medical help for her son (investigators later determined it was more like five hours), even though immediate medical care might have saved his life.

But State Attorney Angela Corey didn’t see things quite as police did. She charged Susana with aggravated manslaughter, but saved the big guns — charges of first-degree murder and aggravated child abuse — for 12-year-old Cristian. She announced she would prosecute the boy as an adult, and in June, a grand jury gave her what she sought — an indictment on both charges. It gave him the dubious honor of being the youngest person charged with first- degree murder in Jacksonville history.

After the indictment, Corey ordered Cristian moved from juvenile detention, where he’d been held since March, to the Duval County Jail. There, he was placed in an isolation cell “about the size of a lawn shed,” one reporter noted, for 23 hours a day.

The move, prosecutors argued, was needed to ensure the safety of inmates at the juvenile facility. “If I were the parents of a kid charged with petty theft,” said Assistant State Attorney Mark Caliel, “I would be outraged if someone charged with first-degree murder were there right beside them.” He cited a report by a forensic psychologist that said that Fernandez scored “high risk” for future violence and insisted the only appropriate place for him was isolation in the adult jail.

Corey echoed the sentiment, and her office fought efforts by Cristian’s lawyers to return him to juvenile custody. As she told one TV reporter, “We have to protect the public from this young man.”

The Fernandez case began just as Corey was gearing up to seek a second term as state attorney for the Fourth Judicial District. In both her first campaign and her years in office, she’s built a reputation for being tough on crime (she once jokingly said she’d put her own mother in jail if she broke the law).

That tough talk played well in a city reeling from years as Florida’s murder capital. Corey led the state this year in death penalty convictions. She nearly doubled the number of juveniles tried as adults her first year in office. She abolished a popular juvenile justice program implemented by her former boss, Harry Shorstein, which offered serious juvenile offenders an opportunity for rehabilitation, and won praise from both The New York Times and CBS’ “60 Minutes.” (Corey’s chief assistant called the program “dangerous and detrimental to the community.”) By getting tough on young offenders, Corey would make Jacksonville streets safe again.

But the Cristian Fernandez case flipped the script. Images of the 5-foot-1-inch, doughy-faced kid, shackled and handcuffed, quickly became an international symbol — not of the need to get tough on crime, but the utter failure of Child Protective Services and the juvenile justice system. News reports from the Philippines to Australia excoriated Corey for prosecuting Cristian as an adult, and petitions, Facebook pages and form letters cropped up across the Internet.

Corey was clearly surprised by the tsunami of attention — letters, phone calls and some very public denunciations. Initially, she defended her decision. But by October, she was hedging that aggressive posture. She promised to offer Cristian a plea deal, and insisted he wouldn’t have to stand trial or face a lifetime in prison.

“No one’s ever talked about a trial,” she said at a press conference called to address the backlash. “No one’s ever talked about life in prison.”

According to state law, however, the only allowable punishment for first-degree murder is life without parole (or death, if the accused is older than 18). And some find Corey’s claim that she intended something other than the mandatory sentence disingenuous. “It’s inconsistent,” says one longtime criminal defense attorney not involved in the case, who declined to be quoted on the record since he will have to face Corey in the courtroom. “And it doesn’t comport with her subsequent motions.” The lawyer notes that soon after plea negotiations failed, Corey sought a second indictment — this time for capital sexual battery in a case involving Fernandez’s 5-year-old brother. The maximum sentence for that crime is life in prison.

The idea of a life incarceration for teens — even those accused of terrible crimes — has grown increasingly suspect in recent years. In part, that’s because of an evolving body of research that shows adolescent brains are fundamentally different than those of adults, with reasoning and judgment abilities that don’t mature until the mid-20s. Developing brains make teens more impulsive, aggressive and susceptible to peer pressure. However, as the brain grows, those behaviors moderate; as many as three-quarters of violent youths simply “grow out of it.”

Such findings have prompted even the conservative U.S. Supreme Court to mitigate harsher punishment for juveniles. In 2005, the court ruled 5-4 to abolish the death penalty for anyone under the age of 18, saying it violated “evolving standards of decency.” Justice Anthony Kennedy, writing for the majority, said that juveniles aren’t as culpable for their actions because they “are vulnerable to influence, and susceptible to immature and irresponsible behavior.” Last year, the court also abolished life sentences without the possibility of parole for juveniles who commit non-homicidal offenses. The case the court heard involved Terrance Graham of Jacksonville, who was sentenced to life in prison for an armed burglary he committed at 16. The justices ruled the sentence violated Graham’s 14th Amendment protections from cruel and unusual punishment.

The court hasn’t yet addressed whether a life sentence is appropriate in a homicide case, but a ruling is coming. In November 2011, the court agreed to hear two cases involving juveniles convicted of murder who were sentenced to life without parole. Lawyers representing the teenagers argue that “fatal acts committed by a child of 13 or 14” are no less impulsive or poorly reasoned than non-fatal acts, and should therefore be informed by the court’s previous ruling.

The combination of case law and scientific research is forcing some states to revisit tough juvenile punishments imposed in the 1990s, following a spike in juvenile homicides between 1985 and 1994, when more than 30 states, including Florida, began prosecuting juveniles as adults. Reports on a generation of so-called “super-predators” fanned the flames of hysteria, and many lawmakers built reputations as being tough-on-youth-crime. Future Attorney General Bill McCollum summed up the view in 1997 when he sponsored a bill in the U.S. House that would have allowed kids as young as 13 to be tried as adults in federal court. “In America today,” he intoned, “there is no greater threat to public safety than juvenile criminals.”

Contrary to such fear-mongering, juvenile crime actually dropped over the subsequent decade (along with other crime), and many states have moved away from more severe penalties. The same is not true in Northeast Florida. If anything, the tough-talking Corey has bucked the trend, increasing the number of teens prosecuted as adults (see “Age Inappropriate,” FW Cover Story, Dec. 8, 2009, http://bit.ly/AlX5wh).

For Jeffrey Goldhagen, chief of community pediatrics at the University of Florida College of Medicine-Jacksonville and former director of the Duval County Health Department, the Fernandez case represents a seminal moment in Northeast Florida. “It reflects the politics of Jacksonville’s past,” he wrote in a furious letter to The Florida Times-Union, “and establishes a dangerous precedent that will stain our community for decades to come.”

Speaking to Folio Weekly, Goldhagen adds, “Cristian is in a situation that violates every accepted human rights standard in the world as it relates to the involvement of children in the justice system.”

If the Cristian Fernandez case has produced some surprises for the State Attorney’s Office, it’s proved downright tumultuous for the Public Defender. Shortly after Corey won the first indictment, a group of high-powered criminal defense attorneys began meeting and discussing strategy. Not legal strategy, but political and interpersonal strategy — essential to accomplishing their planned, unsolicited intervention in the case.

None of the lawyers would speak to Folio Weekly about the case, or their decision to get involved. But several months ago, the group approached Public Defender Matt Shirk and told him they wanted to help. In early December, Fernandez’s legal team expanded to include some of the most prestigious defense lawyers in the region: Hank Coxe, Buddy Schulz, Don Anderson and Melissa Nelson. The team also includes Civil Rights attorney E. Gray Thomas and criminal appellate attorney Bryan Gowdy (the lawyer who successfully argued the Graham case before the U.S. Supreme Court).

The group has kept a low profile, and Shirk has continued to be the public face of the defense team, but to most observers, the lawyers’ appearance on the scene was the arrival of the cavalry — and not a minute too soon.

Matt Shirk is an unusual kind of public defender, having never defended a murder case before his election. When he ran for office in 2008, he wasn’t even 10 years out of law school (he attended Florida Coastal School of Law, on the city’s Southside) and had no prior elective experience. His one advantage was running as a Republican in an overwhelmingly red district, and having the support of other GOP stalwarts, like Sheriff John Rutherford and Angela Corey.

Shirk displaced Public Defender Bill White, who’d been with the office 34 years. After he arrived, Shirk cleaned house. As Folio Weekly reported at the time (“Courting Disaster,” Dec. 16, 2008, http://bit.ly/t9As4N), he fired 10 lawyers with a collective 300 years experience, including such legendary defense attorneys as Al Chipperfield, Susan Yazgi, Ann Finnell and Pat McGuinness (the latter two from the landmark Brenton Butler case, in which they not only exonerated their falsely accused client, but were the stars of an Oscar-winning documentary). The result of Shirk’s housecleaning was a weakened PD’s office, one ill-equipped to deal with the surge of death penalty cases brought by Corey, to say nothing of the caseload that resulted from her aversion to plea deals.

For observers in the legal community, the Cristian Fernandez case brought concerns about weaknesses at the Public Defender’s Office to the fore. Some of those concerns were sparked by gaffes. Early on, as First Coast News reported, Assistant Public Defender Rob Mason “admitted his client should be off the streets for now,” telling a reporter, “Right now, probably society wouldn’t be safe.”

“The thought was, the public defender just really isn’t doing this child a service,” explains one attorney not involved in the case. “He’s a recent grad, and he’s never tried an important case, and this is probably the most sensational case in city history.”

There were also concerns about the close friendship between Shirk and Corey. During their simultaneous campaigns, Shirk was known as Corey’s “protégé” whom she sometimes referred to as her “darling.” After the election, a Shirk spokesperson inexplicably referred media inquires to Corey; she also was involved in staffing (and firing) decisions. More recently, Corey herself hosted the kickoff party for Shirk’s re-election campaign, held at the home of one of the state GOP’s biggest rainmakers, Mike Hightower. (“It’s My Party,” Folio Weekly, Dec. 20. http://bit.ly/wLLHnV)

“It has the appearance of coziness,” says Al Chipperfield, now an assistant public defender in Gainesville. “It looks funny. It feels funny. It makes you wonder if they are going to be adversaries.”

Talbot “Sandy” D’Alemberte, former president of Florida State University, former dean of the FSU law school and former president of the American Bar Association, agrees. “I must say that does concern me,” he says. “I try to put myself in the position of a client of the public defender. What in the devil would they think?” (Neither Shirk nor Corey returned phone calls for this story.)

For the group of defense attorneys that decided to intercede on Cristian’s behalf, the intervention was a delicate matter. They felt compelled to help the boy, but needed to do it without alienating Shirk, or risk making him lose face. The lawyers also had to downplay what is an otherwise extraordinary legal collaboration. While private attorneys are sometimes appointed by the courts, and many work pro bono, it’s almost unheard of for a group of lawyers to insert themselves into a case without being asked. As one prominent member of the legal community notes, such a move would never have been necessary in the pre-Shirk era, when the office was home to the most experienced defense attorneys around.

It’s not clear that Shirk is happy about the intervention. “Matt would probably feel better if they weren’t there,” concedes one local lawyer. “But he can’t turn them down. They’re bright people, and he doesn’t want to screw up this case.”

As attention to the Cristian Fernandez case has intensified, motions from the Public Defender’s Office have grown more sophisticated and more impassioned. In arguing that Cristian should be moved from isolation, Shirk cited a New York state case from 1970 in which a judge ruled that, “to confine a boy without exercise, always indoors, almost always in a small cell, with little in the way of education or reading material, and virtually no visitors from the outside world, is to rot away the health of his body, mind and spirit.”

Shirk further observed that every study of solitary confinement for a period longer than 10 days found it led to “hypertension, uncontrollable anger, hallucinations, psychosis, chronic depression, suicidal thoughts and behavior, sleep disturbances, impaired cognition, anxiety, hostility.” “It is,” Shirk wrote, “serving no purpose other than punishment.”

Fernandez has been back in the Duval County juvenile detention facility since June 24, when Judge Donald R. Moran ordered him returned there from the adult jail after 21 days in isolation.

Public sentiment has also been increasingly sympathetic to Cristian — a petition seeking to force the case back to juvenile court has garnered some 177,000 signatures — and some now think Corey miscalculated when she chose to seek adult punishment for the 12-year-old. Corey insists she will not be swayed by petitions, but has acknowledged feeling conflicted about the case. She told Times-Union columnist Mark Wood how she went to Fernandez’s first appearance in juvenile court to get a look at the person who killed David, and was surprised at how childlike he was. “He looked so baby-faced,” she recalled. After he was indicted, Corey added, “everyone should pray that this young man can be salvaged.”

Given Cristian’s troubled past, salvaging his future will be difficult at best. In the weeks following David’s death, a sad and violent family story emerged. Susana gave birth to Cristian when she was just 12, having been impregnated by a 20-year-old “boyfriend.” Both Susana and Cristian were placed in the custody of the Department of Children and Families when Susana was 14, after 2-year-old Cristian was found wandering naked in a motel parking lot while his grandmother smoked crack in one of the rooms.

Cristian’s life didn’t improve when Susana married Luis Galarraga-Bianco. Police say the boy was brutally beaten by his stepfather, arriving at his Miami elementary school in October 2010 with an eye so swollen that school officials sent him to the hospital to check for retinal damage. When police went to the family’s Hialeah apartment to arrest Galarraga-Bianco, he shot himself in the head with a 9mm handgun in front of his three small children. Police found young David in a back bedroom, cowering and covered with blood.

Given the household in which he lived, Cristian’s alleged violence toward his younger brother may not be surprising. But the toddler’s death almost certainly could have been avoided. When police examined two laptops that sat open on the family’s breakfast bar, they found that one had been used to research concussions. The first search for “when some[one] gets knocked out” occurred at 10:54 a.m. Another search at 2:15 p.m. was for “when your unconscious for hours.” Susana changed David’s clothes and put ice on his head. She told police she was hoping he would wake up. But while she researched concussions, she also added time to her phone card, checked her bank account, searched for screensavers, downloaded music and surfed YouTube. She told police she waited two hours before seeking help, but she didn’t take David to the hospital until six hours after the first Google search.

Dr. William Meadows, the forensic psychologist whom the State Attorney’s Office brought in to assess Cristian’s mental state, stressed that although the boy’s attack on his brother was serious and violent, he “cannot conclude that it was premeditated, planned or sophisticated. Rather the event seemed to be impulsive in nature.” He determined the boy a good candidate for rehabilitation, saying, “The youth has the intellectual ability to benefit from rehabilitative intervention that targets his anger management problems, impulsivity, deceitfulness, depression and psychological dysfunction related to a history of having been abused physically and sexually. He has the resources to benefit from a behavior modification program.”

He also noted that although DCF had identified Cristian as both a victim and an aggressor, “there was a surprising lack of intervention in his life.”

But given the failure of the state’s child protection system, some — Corey included — question the rehabilitative abilities of the state juvenile justice system. Corey insists that the system’s oversight is inadequate, since it could only hold Fernandez for two years; however, the Southern Poverty Law Center disputes her claim. Policy director David Utter weighed in on the case, asserting that the juvenile system has broad discretion to hold juveniles until they are 21 if it chooses. “More importantly,” Utter wrote, “the juvenile system promotes treatment and rehabilitation — including requiring mental health treatment where necessary — while the adult system simply does not.”

Regardless of the sentence Cristian Fernandez receives, the boy — who turned 13 on Jan. 14 — is clearly moving into adulthood with impossible baggage. Even those who fervently want to help him concede he faces long odds. But his case is about more than just one child, or even one destroyed family. According to Sandy D’Alemberte, the Cristian Fernandez case has become a national touchstone, “notorious among people who are concerned with juvenile justice.” The outcome, he says, speaks volumes, not only about the fate of one child, but also about the heart of the community. Commenting on Fernandez’s shackles and handcuffs during court appearances, he says, “What in the hell is that state attorney over there thinking?” He’s silent for a moment, then adds, “I don’t know, but some of your people over there are giving Jacksonville and Duval County a bad name.”